If the thought of getting divorced brings to mind two people sitting across a courtroom from each other while a judge sorts everything out, the reality is usually far less dramatic.
In Australia, you can apply for a divorce without having a lawyer stand beside you in court. In many straightforward cases, you may not need to attend a court hearing at all.
However, there are a few important details to understand, especially if you have children, are making a sole application or need to deal with property and financial matters at the same time.
Do You Have to Go to Court to Get Divorced?
Not necessarily. Divorce applications are generally dealt with through the Federal Circuit and Family Court of Australia, but that doesn’t mean you will automatically have to walk into a courtroom.
If you make a joint divorce application and there are no complications, you may not need to attend a hearing. The court can consider the application and make the divorce order without requiring both parties to appear in person.
A sole application can be a little different. Whether you need to attend may depend on your circumstances, including whether there are children under 18 and whether the application is opposed.
What Happens If You Apply Together?
A joint application is made by both spouses. As you’re applying together, there’s no need for one person to formally serve the divorce documents on the other. That removes one of the more awkward administrative steps involved in a sole application.
Once the application is filed, the court sets a hearing date. If attendance isn’t required, you may not have to turn up. The court may still check that the legal requirements for divorce have been met. For filing, this includes separation for at least 12 months and one day.
You may still need a court order to get divorced. In suitable cases, the application may be decided without your attendance; where attendance is required, the hearing may be conducted electronically.
What If Only One Person Wants the Divorce?
You can make a sole application if your former partner doesn’t want to apply jointly. You don’t need your spouse’s permission to apply for a divorce. However, there are additional steps.
The other person generally needs to be formally served with the application and related documents. There are specific rules about how this must be done and how much notice they need.
If they live nearby and cooperate, this may be relatively straightforward. If they’re difficult to locate, refuse to cooperate or live overseas, things can become more complicated.
That’s one situation where getting legal advice before filing can save you from making the process harder than it needs to be.
What About Children?
Having children doesn’t automatically mean you’ll have to attend court. However, when you apply for divorce and there are children under 18, the court needs information about the arrangements in place for them.
The court won’t usually decide your parenting arrangements as part of the divorce application. It generally considers whether proper arrangements have been made for the childrens care, welfare and development.
If parenting arrangements are already working well and both parents agree, the divorce application may remain relatively straightforward. If you’re dealing with significant disagreement about parenting, that’s a separate issue that may require legal advice and potentially further court proceedings.
Divorce and Property Settlement Are Different Things
This is where things can get confusing. You may be able to get divorced without attending a court hearing, but other family law matters are dealt with separately.
Your divorce legally ends the marriage. It does not automatically divide the family home, savings, superannuation, investments or debts. You and your former partner may be able to reach an agreement about your finances without going to court. Depending on your circumstances, legal advice may help you understand how to formalise the agreement, for example through consent orders or a financial agreement that meets the relevant legal requirements.
The same applies to parenting arrangements. There can be ways to formalise agreements without having a judge decide every detail.
What If You Don’t Agree?
You don’t have to agree with your former partner about getting divorced. Australia has a no-fault divorce system, which means the court isn’t deciding who was responsible for the relationship ending. However, disagreements about property, parenting or other family law matters are separate from the divorce itself.
You may be able to resolve those issues through negotiation, mediation or other dispute resolution processes. Court proceedings may be necessary in some situations, but they’re not the automatic next step every time two people disagree.
Seeking Legal Advice
A family lawyer can explain what needs to be included in your application, whether you need to attend a hearing and what needs to happen with your property and parenting arrangements.
If you’re looking for family lawyers in Melbourne, BRLG can help you understand where you stand and what your options are. For many couples, keeping the divorce process on track can be made possible. Knowing what needs to be done beforehand is what makes the biggest difference.
Schedule an appointment with our family lawyers online now. Your first consultation is free.
This article provides general information only and is not legal advice. The requirements and options that apply depend on your circumstances. For advice about your situation, contact BRLG (Bedrock Legal Group).
